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TMI Blog2013 (3) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... implementation and it could not be said that despite the aforesaid situation the provisions of section 22 would not be attracted. Therefore, it is evident that the BIFR has permitted respondents Nos. 2 and 3 to accept the payment of water cess as based on actual discharge till the company was in operation as per past average. The payment has to be made over a period of 12 months from the date of sanction of the scheme and to waive the entire interest, penalty etc. This aspect has also been highlighted by the appellate authority in its order dated March 15, 2011 although it has been left to the wisdom of the assessing authority. Accordingly, the relief claimed by the petitioner is meritorious and deserves to be accepted even on this additional ground. The impugned order passed by the Assessing Authority for Cess-cum-Member Secretary, Haryana State Board for Prevention and Control of Water Pollution, under section 11 of the Water (Prevention and Control of Pollution) Cess Act, 1977 raising the demand of Rs. 8,16,851 on account of water cess payable is set aside. The respondents are directed to implement the rehabilitation scheme in so far as it concerns them and, as approved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared as a sick industrial company in terms of section 3(1)(o) of the SICA. 3. It has been claimed that despite the complete lock out in the factory and the fact that with effect from September 12, 1996 the workers union took forceful possession of the plant, machinery and office of the petitioner-company, it continued to pay water cess from 1993 to 1996 at the rate of Rs. 85,000 on actual consumption basis. However, on September 13, 2000, the assessing authority of the respondent Haryana State Pollution Control Board-respondent No. 2, exercising powers under sections 10 and 11 of the Cess Act, raised the total demand of Rs. 23,83,120, which includes water cess, penalty and interest (P1). Feeling aggrieved, the petitioner-company filed an appeal on October 11, 2000 under section 13 of the Cess Act, for setting aside the order dated September 13, 2000. It was specifically highlighted in the appeal that since the petitioner-company has been declared as a sick company by the BIFR on October 4, 1996, therefore, as per section 22 of the SICA no recovery could be effected from it without seeking prior permission from the BIFR. It was further stated that even the assets of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2005 for supplying the reasons for not implementing the directions of the BIFR (P7). On April 20, 2010, a reply has been sent by respondent No. 3 stating that there is no provision to waive the interest/penal charges for default or non-payment of any dues under the Cess Act (P8). Faced with the action of the respondents, the petitioner-company has filed the instant petition. 7. In the written statement filed on behalf of respondents Nos. 2 and 3 there is no denial of the factual position. It has been reiterated that there is no provision in the Cess Act for waiving the water cess as claimed by the petitioner-company. The BIFR has made only a recommendation which is not binding upon them. It has been specifically admitted that no appeal against the order dated January 10, 2007 (P5), passed by the BIFR has been filed by respondents Nos. 2 and 3. 8. We have heard learned counsel for the parties at length and perused the paper book with their able assistance. It is a conceded position that the petitioner-company has been declared as a sick company by the BIFR on October 4, 1996 under the provisions of section 3(1)(o) of the SICA. Eventually, vide order dated January 10, 2007, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument raised on behalf of the respondent-Pollution Control Board that the rehabilitation scheme is not binding on them and there is no provision in the Cess Act for waiving the penalty and interest. 10. Even otherwise once a company is before the BIFR, section 22 of the SICA would come in operation. It would be profitable to reproduce the relevant part of section 22 of the SICA, which reads thus : "22. Suspension of legal proceedings, contracts, etc.-(1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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